News And Updates

Employment background checks - Lawsuits are increasing

Background checks must be completed by a competent screening firm that has a working knowledge of the laws concerning background checks. These laws pertain to the Fair Credit Reporting Act Federal Privacy Laws and State Regulations concerning criminal history checks and other consumer reports.

Unless background checks are completed by knowledgeable professionals in the industry, there is an increased risk of lawsuits being filed against the screening company and in other instances against the employer.

Following is one case that came to our attention that involved litigation filed by the plaintiffs attorney.

Case 1: Background Firm Sued for Violation of FCRA by Reporting Existence of Prohibited Records.

In this federal case, a national employment screening firm uncovered information that the applicant had an arrest record over seven years ago, there were no convictions, but arrest only. The federal Fair Credit Reporting Act prohibits reporting of an arrest older than seven years old, unless the applicant is reasonably expected to make a salary of over $75,000 per years. FCRA section 605(15 U.S.C.1681c)

In order to determine if the arrest were reported to, the screening firm sent a communication to the prospective employer indicating that there was a criminal history that over seven years old that was not a conviction, and that it only be reported if the applicant was going to make over the $75,000 yearly limit. The employer was told that if they were to receive this information, they must confirm to the screening firm if the applicant meet the salary threshold.

The job applicant files a lawsuit in the United States District Court for the Eastern District of Pennsylvania, alleging damages for the practice of disclosing the existence of outdated arrest records. The basis of the lawsuit was that the manner in which the background firm asked about salary amounted to a notification that an applicant has an arrest record.

The screening firm, among other arguments, suggested that merely reporting the existence of old arrest records did not violate the FCRA, since the background firm did not provide disclosure of the actual records. The court denied the screening firm's motion to dismiss and allowed the lawsuit to proceed.

The court ruled that even FCRA was ambiguous on that constitutes reporting an arrest record, the FCRA was cleat that the general prohibition against reporting items in adverse information over seven years old was violated. By informing the employer that there was such information in the process of establishing the applicant's salary the screening firm ended up reporting something adverse that may have been prohibited.

The point is that the background firm needs to understand that any communication of negative information to an employer has potential ramifications, even if the communication is not contained in the actual report. It underscores that screening is a legally regulated professional service, and not merely data reporting.

National Source Public Records, Inc. are professionals in the industry of background checks and employment screening. We keep abreast of the latest laws and regulations concerning the Fair Credit Reporting Act and Federal and State Laws.

We are not a mere data reporting company that reports information without regard to the legal ramifications. We make every effort to protect our clients. But we must reiterate that we are not attorneys, it is always best to make sure that any questions that you have pertaining to laws and regulations in your state that you consult with your own attorney.

National Source Public Records, Inc. has provided background screening to its clients for over 21 years, we strive to provide accurate information and confirm that information we provide to you has been verified.

Call our office if you have any questions at (800)750-1360 ext 112